"The commercial power continues until the commodity has ceased to be the subject of discriminating legislation by reason of its foreign character. That power protects it even after it has entered the state from any burdens imposed by reason of its foreign origin."

The effect of the legislation is to forbid, without license, the canvassing or selling by sample any of the goods specified in the statute and which have been shipped into this State, and permits, without license, canvassing and selling in such manner the same kind of goods manufactured or produced within the State.

“A law," says Mr. Justice Swayne, in the case of Machine Co. v. Gage, 100 U. S. 678, 25 L. Ed. 754, "which requires a license to be taken out by peddlers to sell articles not produced in the state, and requires no such license with respect to those who sell in the same way articles which are produced in the state, is in conflict with the power of Congress to regulate commerce with foreign nations and among the several states."

That portion of the act which requires a license to canvass or sell by sample goods shipped into the state, and permits, without a license, the canvassing or selling in such manner goods not shipped into the state, violates the commerce clause of the federal Constitution, and is therefore void. Such a conclusion was also reached by the Supreme Court of Washington in the case of Bacon v. Locke, 42 Wash. 215, 83 Pac. 721, upon a similar statute.

This portion of the statute is further an illegal regulation of commerce, in that it imposes a tax to canvass and sell to users and. consumers by sample goods shipped into the state, and permits sales in such manner to merchants and all persons not users and consumers without a license. In this connection it is again well said by the Supreme Court of the United States in the case of Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719.

"It is true, in the present case, the tax is imposed only for selling to persons other than manufacturers and licensed merchants, but, if the state can tax for the privilege of selling to one class, it can for selling to another, or to all. In either case it is a restric

tion on the right to sell, and a burden on lawful commerce between the citizens of two states. It is as much a burden upon commerce to tax for the privilege of selling to a minister as it is for that of selling to a merchant."

We do not see wherein other portions of the statute contravene the commerce clause of the federal Constitution. The state has the undoubted right to classify occupations, and to impose different taxes upon different occupations, so long as there is no discrimination against citizens or property of other states. It is essential, however, to the constitutionality of such statutes that the tax apply equally to all persons of a given class and is uniform and equal. The right of the state to enact laws to regulate or restrict the sale of articles deemed injurious to health or morals of the community is also unquestioned. Avocations and employments pursued within the state, not directly connected with interstate commerce, or with some other employment or business exercised under authority of the Constitution and laws of the United States, and all property within the state mingled with and forming a part of the great mass of property therein, are subject to the taxing and police power of the state. The Legislature undoubtedly has the power to regulate the business of peddling and hawking within its territory. The ordinary meaning of a peddler or hawker is an itinerant or traveling trader who carries goods about in order to sell them, and who actually sells them to purchasers by delivering the goods at the time of the sale, in contradistinction to the trader who has goods to sell and sells them in a fixed place of business. Such sales and business are wholly an internal commerce, which the state has a right to regulate. It may well be conceded that frauds and cheats are likely to attend itinerant and irresponsible peddling from 'house to house or place to place, and that, under its police power, the state may regulate such business by requiring peddlers and hawkers to take out and pay for licenses. If the Legislature had regulated the business of peddling and hawking, and had forbidden the carrying on of such business without first obtaining a license; we think no fault could be found with such an enactment.

But this is not what the Legislature did. It singled out but a few articles—such goods as are not produced or manufactured in this state and which are not even injurious to health or morals of the community-and required an annual fee or tax of $500 to be paid to peddle any of them, while the business of peddling and hawking of all other goods and articles, including those which are injurious to health and morals, and which affect the security of the lives, limbs, and comfort of the people, may be carried on with perfect freedom and without license. That is to say, under the act one may peddle shot guns and bowie knives, dynamite, and gunpowder, celery compound and cocaine, tobacco and opium, and many other things (whether harmful or harmless) without license and with impunity; but to peddle the Holy Bible or any other book, wagons, buggies, stoves, sewing machines, and a few other articles enumerated in the statute an annual fee or tax of $500 is exacted. Now, it is apparent that, under the pretense of exercising a police power or of adopting a revenue measure, the Legislature passed the act for the mere benefit of local and domestic dealers. Of a similar act passed by the Legislature of the state of Washington the federal court in the case of Spaulding v. Evenson (C. C.), 149 Fed. 913,

said:

act was

"In 1903 an act was passed by the Legislature of this state which undertook to prohibit the sale of vehicles, stoves, ranges, pianos, or other merchandise without license, and the license fee was fixed at $10 per day, but with the proviso that the act should not apply to any person selling any of said articles from his regularly maintained stock or established place of business, when such stock had been maintained in the county for a period of six months. This several times held discriminative and void by superior judges of the state of well-recognized ability, but did not apparently reach the Supreme Court; those decisions being generally acquiesced in. While it has been suggested by affidavit that complainants are carrying on business in violation of this law, it was not referred to in argument, and it may be assumed that counsel do not rely upon that point. In 1905 an act was passed to meet the objections to that of 1903. It provides that every person, firm, or corporation who peddles out after shipment to the state, canvasses, or sells by sample, etc., shall pay in advance an annual license tax of $200. This act was recently declared void by the state Supreme Court.

It is a matter of common notoriety that this legislation was enacted at the suggestion and for the benefit of local dealers. The amount fixed for license by the Legislature was intended to be prohibitive of competition by peddlers. Shortly after the decision holding the act of 1905 unconstitutional, we find the dealers who had attempted to put the peddlers out of business by legislation resorting to the very ingenious scheme which has been here disclosed. It is proposed now to accomplish by subterfuge that which the courts of the state have repeatedly held cannot be done directly."

In the case of Robbins v. Shelby, 120 U. S. 489, 7 Sup. Ct. 592, 30 L. Ed. 694, it was also said:

"This kind of taxation is usually imposed at the instance and solicitation of domestic dealers as a means of protecting them from foreign competition. And in many cases there may be some reason in their desire for such protection. But this shows in a still stronger light the unconstitutionality of the tax."

While ordinarily we are not permitted to inquire into the motive of the Legislature, yet as said by the court in the case of Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937:

"It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are in reality passed from other motives. We are justified in saying so when, from the character of the law and the subject upon which it legislates, it is apparent that the public health or welfare bears but the most remote relation to the law. The purpose of a statute must be determined from the natural and legal effect of the language employed; and whether it is or is not repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose. (Minnesota v. Barber, 136 U. S. 313, 10 Sup. Ct. 862, 34 L. Ed. 455; Brimmer v. Rebman, 138 U. S. 78, 11 Sup. Ct. 213, 35 L. Ed. 862.) The court looks beyond the mere letter of the law in such cases. (Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220.)"

We are well satisfied that the act has no such relation to the public health or morals as will sustain it as a police measNor can it, because of its illegal discrimination as to

ure.

We

property and persons, be upheld as a revenue measure. think it repugnant to the provisions of the federal Constitution that no state shall abridge the privileges or immunities of citizens of the United States nor deny to persons within its jurisdiction the equal protection of the laws. Whether it is also in conflict with the provisions of the state Constitution requiring all laws of a general nature to be uniform in operation we need not now determine. The judgment of the court below is therefore reversed, and the cause remanded, with directions to dismiss the action and to discharge the defendants.

MCCARTY, C. J., and FRICK, J., concur.

PAYNE v. HODGSON.

No. 1946. Decided August 10, 1908 (97 Pac. 132).

1. ELECTIONS-CANVASSING BOARD-POWERS. Under Comp. Laws 1907, section 891, relating to city elections, which provides that "on the Monday following any election the city council

2.

must convene and publicly canvass the result and issue certificates of election to each person elected by a plurality of votes," the council has no power to inquire into either the legality of the nominations or the legality of the votes cast, or into the regularity of the official ballot, but is bound to issue a certificate of election to the person ascertained to have received the largest number of votes for a particular office.

SAME CONTESTS-NATURE AND FORM OF REMEDY. A statutory proceeding to contest an election merely gives a cumulative remedy, and generally a contest can only be made on the grounds enumerated in the statute.

3. SAME CONSTRUCTION OF STATUTE. In an election contest instituted under Comp. Laws 1907, section 914, the contestant can not question the regularity or validity of the proceedings of conventions or committees in making or filing nominations, nor can the action of the officer whose duty it is to make up the party tickets and prepare the official ballot be reviewed, which can only be done by direct proceeding before the election, so that errors, if found, may be corrected.